Levystein v. Gerson, Seligman & Co.

41 So. 774, 147 Ala. 251

• Court: Supreme Court of Alabama
• Decided: July 15, 1906
• Status: Published

Opinion

TYSON, J.

The bill in this cause is exhibited against a partnership composed of three designated persons, nonresidents of Alabama: service of summons being made upon Emil C. Seligman, one of the named partners. After a decree overruling a motion to- quash the summons made by the party served, the complainant proposed to file an amendment converting the suit into one against the partners individually and to further strike out the names of the partners not served, so as to' make it a suit against Emil C. Seligman alone. The court refused to allow the amendment, and the question is error vel non in this lulling.

We think, on principle and authority, the amendment should have been allowed. Conceding that section 40 of the Code of 1896, allowing suits against partnerships by their partnership name without mentioning the names of persons composing the firm,, has no application to suits in equity (City of Opelika v. Daniel, 59 Ala. 211), this cause would be in a better situation for amendment than were the cases of McCaskey v. Pollock, 82 Ala. 174, 2 South. 674, and Sims v. Jacobson, 51 Ala. 186. In the latter case the action was brought in a firm name without any mention of individuals, and the plaintiff proposed to amend so as to evoke the action by individuals against individuals by inserting the names of the members of the plaintiff and defendant firms..The trial court refused, to allow the amendment, and on appeal this court held the amendment allowable, saying; “The .amendment proposed’no change of parties and no change of the cause of action originally averred. A debt due the partnership of Sims, Harrison & Co. from the partnership of Jacobson & Co. must have been proved under the original, and must be proved under the amended, complaint. The partnership ánd their members were substantially before the court on the complaint as originally framed. A new party has not been introduced, which is unauthorized by our statute of amendments; but the designation of the respective parties, plaintiff and defendant, is only made more specific and certain. The amendment was proper, was the right of the plaintiff, and the court erred in refusing it.” In the case of McCaskey v. Pollock, supra, a suit against the individual's of a firm was allowed by amendment to be converted into a suit against the partnership as such. The authority and reasoning of these two cases make it clear that the court erred in not allowing the proposed amendment in this case.. .

It is of no moment that the summons and the return of the sheriff thereon are not shown in the record, as it otherwise sufficiently appears that service was made on Emil C. Seligman, the member of the firm proposed by the amendment to be retained as the sole defendant. As the court dismissed the bill preliminarily for the want of parties defendant, we deem it unnecessary and improper to rule on other questions, which could arise only subsequently to the establishment of the suit in court.

Reversed and remanded.

Weakley, C. J., and Simpson and Anderson, JJ., concur.